DECISION

On March 10, 1975 S. Bailey Norton, Drusilla N. Parks and
Floyd C. Norton, Trustees of N.P.N. Trust (N.P.N.), filed a petition
in this Court pursuant to G. L. c. 185, § 1 to confirm their title
to a parcel of vacant land situated on Meeting House Road in
Edgartown in the County of Dukes County. Certain of the respondents
in the confirmation proceedings then filed, on October 8, 1975, a
complaint in the Superior Court for Dukes County to establish title
to Lots 24, 25 and 26 in the "Great Plains Third Division". On
motion of N.P.N. the Superior Court proceedings were transferred
to the Land Court; while not technically consolidated, the cases
were tried together, and all evidence introduced was considered in
reaching the decision in each proceeding.

In the confirmation case N.P.N. seeks to confirm title to the
premises shown on a plan entitled "Plan of Land in Edgartown, Mass.
to be filed in the Land Court" (the "Plan") dated February 7, 1975
by Schofield, Brothers, Inc. and filed as plan No. 38774A (Exhibit
No. 1). The plan shows three lots numbered 24, 25 and 26, together
containing about 51.54 acres. The premises are bounded on the
northwest by Meeting House Road and land of Peter C. and Nanette
West Conover, on the west and southwest by Proprietors Road and on
the northeast by land now or formerly of Mary M. Waller, denominated
as Lot 23 on said plan. The lot numbers refer to the so-called
"Great Plains Third Division", the proper location of which has been
one of the issues in the case. Meeting House Road has been known in
the past as the Road to the Swimming Place, and Proprietors Road is
shown as Plain Road on Land Court Plan No. 34426A. The locus is
situated northwesterly of Herring Creek Road, a main thoroughfare
in Edgartown, into which both Meeting House Road and Proprietors
Road lead.

The petitioners principally rely upon record title although
there were some sporadic acts of adverse possession shown at the
trial. The plaintiffs in the miscellaneous case, Robert E. West,
Dorothy M. West and Arthur Gazaille claim, title to the same premises
under color of title and adverse possession. Arthur Gazaille initially
was represented by counsel for Mr. and Mrs. West. When
original counsel withdrew and new counsel appeared for the Wests,
he did not also appear for Mr. Gazaille, who is Mrs. West's brother.
This left Mr. Gazaille appearing pro se. The Court was advised that
he was aware of the proceedings, was following the course of the
trial, but did not wish to take an active part. He was notified by
the Court by letter of his right to appear and be heard, but he has
never communicated directly with the Court. The plaintiffs in the
miscellaneous matter and the respondents in the confirmation case
hereinafter are generally referred to as the "Wests".

The cases were heard at the Land Court in Boston on December
14 and December 15, 1976, February 28, March 1, March 2 and March 3,
1977 and in the court house in Edgartown on January 4 and January 5,
1977. At each session a stenographer was sworn to record the evidence.
All exhibits introduced into evidence are incorporated herein by
reference for the purpose of any appea1. A view was taken on
January 5, 1977.

The abstract (other than the Narrative) prepared by Donald F.
Smith, the Land Court Examiner, who testified at the trial, was
introduced as Exhibit No. 2. It shows an one-half interest of record
in Lot 24 outstanding in one Hattie A. Osborne in 1889; there has
been no conveyance of record of this interest, and its devolution by
inheritance cannot be traced. The Examiner was unable to locate any
clue in the registry of deeds, the registry of probate or otherwise
as to the present holder of this interest. Nor has the search for
Ms. Osborne or her heirs or devisees been fruitful. The proper
resolution of this question will be discussed later in this decision.
Otherwise the Land Court Examiner concluded that record title was in
the petitioners subject to ten other problems. Two of these in
essence raise the same problem, the others are not in and of themselves
sufficient to bar confirmation. The chain of title for each
lot appears in Chalk B. The Wests' expert, Leon R. LeClair, Jr.,
who made no independent examination of the records but based his
opinion on the Land Court Examiner's work, agreed with the Land
Court Examiner in all but two respects. One matter of disagreement
was the correct location of the second parcel in a deed from Mattie
W. Modley to Robert P. Brown, Jr. (not of locus but of assistance
in placing locus) dated June 19, 1941 and recorded in Book 23, Page
494 (Abstract, sheet 78). A more significant disagreement was as to
the proper placement of the parcel marked "Peter C. & Nanette West
Conover" on the filed plan. In order to clarify these points of
difference I summarize the title.

N.P.N.'s title is derived from two deeds to Samuel B. Norton
and Mildred J. Norton, husband and Wife, as joint tenants. One of
these was a foreclosure deed from Antone P. Salvadore dated
November 27, 1943 and recorded with Dukes County Registry of Deeds, [Note 2]
Book 208, Page 187. The other was a deed from Mattie W. Modley
dated December 21, 1948 and recorded in Book 215, Page 374. The
Land Court Examiner concluded that the Salvadore deed conveyed an
undivided one-eighth interest in Lot 24, an undivided one-fourth
interest in Lot 25 and an undivided one-half interest in Lot 26
(except for a 300 foot square parcel thereof excluded from this
conveyance). As far as the Modley acquisition was concerned, he
concluded that her deed conveyed an undivided three-eighths'
interest in Lot 24, an undivided three-fourths' interest in Lot 25
and an undivided one-half interest in Lot 26.

Salvadore initially acquired his interest in all three
parcels in 1902 from Edward T. Vincent; he conveyed all of them
to John B. Barriau1t by deed dated and acknowledged on September
27, 1923 but not recorded until October 1, 1938 in Book 177, Page
358 (Abstract, sheet 53). Barriault reconveyed the same interests
in the same parcels to Salvadore by deed dated, acknowledged
and also recorded on October 1, 1938 in Book 197, page 216 [Note 3]
(Abstract, sheet 54). Salvadore then immediately conveyed to
Barriault a parcel on Meeting House Road which was three hundred
feet by three hundred feet by deed again dated, acknowledged and
recorded on October 1, 1938 and recorded in Book 197, Page 217
(Abstract, sheet 55). Some of the difficulty with the title stems
from this deed, for its location on the road is a matter of conjecture.
The description begins at the northeasterly corner of the
premises on the southerly side of the road "at land of Mattie W.
Modley". This reference is ambiguous, for Modley and Salvadore,
as tenants in common, together owned the three lots comprising
locus. If the draftman of the Salvadore-Barriault deed intended
to commence the description at a monument within some portion of
this land, it would have been usual to describe it as "other land
owned by the grantor et al". Alternatively some adjoining land of
Modley may have been intended, but the location of the only parcel
to which I have been referred (Abstract, sheet 78) the so-called
Dunham's Corner Lot, was in dispute at the trial as hereinbefore
mentioned. I find, as Mr. LeClair concluded, that it does not
adjoin the locus, but rather is located on the opposite side of
Meeting House Road.

Having carved out the 300 foot parcel, Salvadore proceeded to
compound the mystery by conveying to Angeline Brazeau Maurry by
deed dated October 4, 1938 and recorded in Book 197, Page 232
(Abstract, sheet 56) a parcel of land described as follows:

"The land in said Edgartown, on the "Great Plain"
so-called, bounded and described as follows: Beginning
at the northwesterly corner of the premises hereby conveyed
on the southerly side of the Road to the Swimming
Place and at the junction of another Road leading south;
thence easterly by said Swimming Place to land of John
B. Barriault; thence southerly by said Barriault land,
300 feet to a corner; thence easterly still by said
Barriault land 300 feet to land of Mattie W. Modley;
thence southerly by said Modley land to land of one
Duchaine; thence westerly or northwesterly by said
Duchaine land to a road leading south from the Swimming
Place Road; thence northerly by said last named road
about 38 rods and 6 links to the point or place of
beginning. Being part of the premises conveyed to
Antone P. Salvadore by deed of Edward T. Vincent dated
June 13, 1902 and recorded with Dukes County Deeds,
Book 105, Page 306."

Salvadore took back a purchase money mortgage from Mrs. Maurry
(Abstract, sheet 57) in which the same description was used. The
foreclosure deed to the Nortons, based thereon and in accordance
with customary conveyancing practice, also set forth the same
description. (Exhibit No. 4)

In addition to the problem of locating the Barriault piece,
these several instruments run southerly "by said Modley land to
land of one Duchaine". A predecessor in title of Mrs. West was
one Arthur Duchaine who formerly owned the land on the southwesterly
side of Proprietors Road marked "Robert E. & Dorothy G. West" and
"Wayne E. West" on the filed plan. The deeds to Duchaine, (Exhibits
41A and 41B) run from Antone P. Salvadore and Mr. Salvadore et ux,
are dated November 1, 1926 and September 16, 1930 and are recorded
in Book 170, Page 126 and Book 181, Page 302 respectively (the
latter deed being confirmatory of the 1926 conveyance). Mr. Duchaine
thereafter conveyed these premises (generally called the "West homestead"
herein) to Dorothy Gazaille (West ) by deed dated September
30, 1943 and recorded in Book 208, Page 97 (Exhibit No. 40). There
was testimony at the trial that John Barriault lived in a shack at
the rear of what is now the Conover parcel, and that its remains
may still be seen. This being so, and I so find, then the parties
to the 1938 Salvadore-Barriault deed must have intended title to
the land on which his home was located to be in Barriault. This
explanation does not answer the question as to why the premises
were bounded by land of Modley which may merely have been a matter
of poor conveyancing or reflect a lack of knowledge by Salvadore
(or his attorney) as to the location of his boundary line or his
common ownership with Modley. I am satisfied, however, that the
Barriault piece has been correctly placed. I therefore find and
rule that the description in the foreclosure deed to Captain and
Mrs. Norton commences at the junction of Herring Creek Road, Slough
Cove Road and Meeting House Road near Proprietors Road, then runs
easterly to the parcel marked Conover on the filed plan, then runs
southerly and easterly by the latter, then turns and runs southerly
through what is shown as Lot 25 to a point on Proprietors Road
opposite the northeasterly end of the southeasterly boundary of
Wayne West whence it follows Proprietors Road to the point of
beginning. This conclusion is buttressed by the fact that the
Maurry home was located on Lot 26. The weakness in the conclusion
is that it leaves Salvadore with outstanding fractional interests
in the remainder of Lot 25 and in Lot 24. However, there is a
logical explanation which will eliminate these interests which I
do not believe Salvadore wished to retain. The deeds in this chain
cease to speak in terms of fractional interests in 1938. Similarly
the 1948 deed from Modley to the Nortons, hereinafter discussed,
was couched in absolutes. The inference seems justified that Modley
and Salvadore, had exchanged unrecorded partition, deeds. [Note 4]

John Barriault left the Vineyard for New Bedford and died on
Cape Cod. Before he died, he conveyed the 300 foot parcel to Mrs.
West's father, Joseph Gazaille, by deed dated April 29, 1946 and
recorded in Book 211, Page 289 (Exhibit No. 7, Abstract, sheet 85).
The deed also attempted to convey the same fractional interests in
the same three parcels conveyed by Antone P. Salvadore to Barriault,
who in turn had reconveyed them to Salvadore. The deed was ineffective
to do so, however, for Barriault had already parted with his
interest by a deed duly executed and recorded. The Gazaille chain
also includes a taking by the Town of Edgartown from John Barriault
for the nonpayment of 1943 real estate taxes on land described as
"Land, Great Plains, 17 acres" recorded in Book 209, Page 301
(Exhibit No. 9) and an instrument of redemption recorded in Book
212, Page 345 (Exhibit No. 10). Assuming that the assessment was
not bad for indefiniteness, it cannot in any event affect the title
to the locus, for the assessed owner had conveyed out the premises
before the assessment date of the 1943 taxes.

N.P.N.'s remaining interest in the locus is derived from Mattie
W. Modley (Abstract, sheet 80). The respondents do not dispute this
per se. They appear only to dispute the easterly boundary which
they would move further to the east whereas the petitioners were
content to fix this line by agreement with the abutter, Mary M.
Waller (Exhibit No. 49). The deed to Captain and Mrs. Norton from
Mattie W. Modley dated December 21, 1948 and recorded in Book 215,
Page 374 (Abstract, sheet 80), described the granted premises in
the following fashion:

"The land in said Edgartown" bounded and described
as follows:

Beginning at a bound in the Meeting House Way
directly opposite the Southeasterly corner of land
sold or conveyed by Edward T. Vincent to Arthur
Barriault; then running southerly by land of parties
unknown to the Creek Road; then southwesterly by said
Creek Road to a Proprietors Road or Way; then northwesterly
by said Proprietors Way to the Meeting House
Corner so called, on the Meeting House Way; then
northeasterly by said Meeting House Way so called to
point of beginning."

The Land Court Examiner fixed the point of beginning of said
Modley deed by locating a deed from Edward T. Vincent to Arthur
Barriault dated August 5, 1931 and recorded in Book 183, Page 151
(Exhibit No. 42, Abstract, sheet 81). This property bounds southerly
on Meeting House Lane (Road) for six hundred fifty feet and
northwesterly by the Telephone Right of Way. Accordingly, the
Examiner pinpoints the Modley deed point of beginning as also being
about six hundred fifty feet easterly of said right of way measured
along the southerly side line of Meeting House Road. This would
place the starting point somewhere near the northeasterly corner of
land shown on the filed plan as "Mary M. Waller" and would include
not only the entire locus but Lot 23 and land to the east as well.
Whatever infirmities there may be, in the various descriptions in
the chain of title, it is at least certain that the Modley-Norton
deed conveys all of the Modley interest in the premises to which
N.P.N. seeks to confirm its title. If, as I have earlier found,
Modley and Salvadore exchanged unrecorded partition deeds, one would
have expected the Modley deed to bound by land of Salvadore rather
than encompassing the entire parcel shown on the Plan. However, the
conveyancing problems in this title are such that inconsistencies
are reassuring rather than disturbing.

In the posture of the case which I have taken, I have found
record title to the premises shown on the Plan to be in the petitioners.
Much of the evidence at the trial, however, centered on
the claim of adverse possession made by the Wests. Inasmuch as
some of this was under color of title, the following explanation
may be helpful. John Barriault conveyed fractional interests in
the locus to Mrs. West's father, Joseph Gazaille, after he had
already conveyed the property to Salvadore. The deed, therefore,
passed nothing. However, Mr. Gazaille then had color of title to
an interest in the locus, but so far as appears from the evidence,
he never entered upon the premises to exercise his claim of ownership.
After Mr. Gazaille's death on February 27, 1952 and that of
his wife on January 13, 1953, his children (other than Mrs. West
and Arthur Gazaille) conveyed the same fractional interests in the
locus and the 300 square foot parcel to Robert E. West and Dorothy
M. West and Arthur Gazai11e and Martha Gazail1e, all as tenants in
common (Exhibit No. 8; Abstract, sheet 86). This deed was recorded
on February 3, 1959 so whatever activities the Wests thereafter
engaged in upon the three lots had the benefit of the doctrine of
color of title. As explained in Dow v. Dow, 243 Mass. 587 , 590
(1923), the advantage of having the benefit of the doctrine is that
it, in effect, cuts down on the burden of proving adverse possession, i.e.:

"It is settled that where a person enters upon a parcel
of land under a color of title and actually occupies a
part of the premises described in the deed, his possession
is not considered as limited to that part so
actually occupied but gives him constructive possession
of the entire parcel. The entry is deemed to be coextensive
with the grant upon the ground that it is the
intention of the grantee to assert such possession."

Activities of the Wests on the locus commenced well before the
recording of the deed to them, which is assumed to be the date of
its delivery absent other evidence (cf. G. L. c. 183 § 5). While
the acts now relied upon to establish adverse possession began
after Mrs. West's father thought he had acquired title, there is
no showing that such acts were done with his authority. It appears
more closely tied to the acquisition by Mrs. West of the West homestead
located on the southwesterly side of Proprietors Road, just
across from the locus. (Exhibit No. 40). Accordingly, the doctrine
seems inappropriate here prior to 1959.

Similarly inapplicable is the principle which limits the
doctrine of adverse possession when the disseisor and disseisee
are tenants in common. The reason for this rule is that possession
of a tenant in common is presumed to be pursuant to his interest in
the premises and not adverse to his co-tenants absent some unequivocable
action on his part notorious enough to constitute notice,
actual or constructive, of ouster to the co-tenant Lefavour v. Homan, 3 Allen 354 (1862). Although the Wests believed that they owned
some interest of record in the premises, in fact they did not, and
both the reason for the rule and its rationale are lacking here.
CF. also Phipps v. Crowell, 224 Mass. 342 (1916).

There was voluminous testimony, much of it repetitive, concerning
the nature of the locus and the activities of the Wests thereon.
On all the evidence I find as follows: that at the time of the view
the locus Was heavily wooded along the Meeting House Road side of
the property for one-half to two-thirds of its depth; that the
concentration of trees was greatest at the northerly boundaries of
Lots 24 and 25 easterly of the Conover parcel; that in the 1930's
the locus was largely free of trees; that as late as the 1940'S most
of the area was open; that as the general raising of livestock on
portions of the locus by predecessors in title of N.P.N. ceased
and the character of the Island began to change, the locus became
more wooded; that the pine trees grew in on the locus between 1945
and 1955; that the trees at the northern end of Lot 24 may be roughly
forty years old and those on that part of Lot 25 nearest Meeting
House Road forty-two to forty-five years old; that sometime between
1947 and 1951 the Wests began to abandon junk cars on the locus;
that these cars eventually were sold and replaced by others; that
the number is now less, apparently because of the death of one West
son and an Edgartown by-law limiting the practice; that some cultivation
began about 1947 in the vicinity of what is now the Conover
lot; that the most visible use of the locus was a plowed tract about
four hundred feet by thirty-five to forty feet located on Lot 26;
that the garden was planted only intermittently and served also as
a fire break and a tick deterrent; that the time when the Lot 26
plowing commenced is obscure, but it appears to have been sometime
in the 1950's; that the feasibility of such use varies with the
crops that were planted; that Mr. West purchased a tractor in 1946,
but there is no credible evidence that the planting of the locus,
other than on the Conover parcel, commenced earlier than the 1950's,
although some of the land may have been disced; that one of the West
sons was said to have driven the tractor at the age of eight years
old (about 1955) with this use concealed to avoid his father's wrath;
that in 1947 the Wests constructed a rough pig-pen which is an "A"
frame structure still visible on the locus; that over a period of
nearly thirty years pigs were kept on the locus only three times,
in 1947, 1951 and 1963; that as is customary with pigs, they were
raised only from April to September or October when they were
slaughtered; that during boyhood and adolescence the oldest West
son, Wayne, raised chickens for a time in the old "A" frame; that
when the building deteriorated, a new chicken coop was constructed
about 1960 by Wayne West close to the boundary between Lots 25 and
26; that this chicken coop is not visible from either road; that
occasionally other livestock, normally kept on the West homestead,
grazed on the locus; that these animals appear to have consisted of
one or two cows and a few sheep, but the use of the premises for
this purpose was very limited; that there also were recreational
activities on part of the locus by the West children over the years
which included blueberrying, playing, use of a swing and play house,
horseback riding and driving cars, including driving in an area
denominated the "race track" by the youngsters; that the "race track"
was located on Lot 25; that testimony varied as to the date of its
use began, but I find it to have been no earlier than 1960; that the
children also crossed the locus to reach their aunt's home on the
opposite side of Meeting House Road during the years from 1949 to
1960 approximately; that more recently the families have gone back
and forth from the West homestead to the Conover parcel, but that
such a use has not prevailed for more than ten years; that the
condition of Proprietors Road, which is not paved, is such at
certain times of the year as to have led the Wests to remove the
trees along a path from the West house across Lot 26 to Meeting
House Road in order to afford them access to a public way; that
this way has been used for at least twenty years at the appropriate
times of the year; that it appears in Exhibit No. 15, Pictures 11,
16, 19, 28 and 31, and was driven over during the view; that the
telephone company right of way has been used not only by the Wests,
but by strangers as well as a convenient means of crossing the
property; that it was common practice in years past and while the
"Plains" area was open for residents of the Vineyard to drive
across such a field and not to limit their routes to the travelled
ways; that people openly rode horseback, hunted and picked berries
without considering it necessary to have permission; that
such practices gradually have ceased; and that the Wests have hunted
rabbits and pheasant on the locus and made an attempt to hunt deer.

The requisites for establishing title by adverse possession
are well established: -the use of the premises must be open, continuous,
exclusive and adverse under a claim of right for at least
twenty years. Historically it has been difficult to obtain title
by adverse possession in Massachusetts if the premises in question
are "wild land", for the disseisor has been viewed as a wrong doer,
and the rights he might acquire by application of the doctrine of
adverse possession limited. Cowden v. Cutting, 339 Mass. 164 (1959),
is a recent affirmation of this earlier principle. It is questionable
whether this doctrine has merit today. It is more attuned to current
philosophy to emphasize the equally well established doctrine that
the degree of proof necessary to establish title by adverse possession
varies with the character of the property, the purposes for
which it is adapted and the uses to which it has been put. Kershaw
v. Zecchini, 342 Mass. 318 , 320 (1961). In any event, it is dubious
that the locus properly can be characterized as wild land, other than
the extreme northerly portions of Lots 24 and 25. During much of
the time in question the land was open and in earlier years had been
used for truck gardening and pasturing of farm animals. It may be
that if the present trend continues, with the encroachment of the
trees spreading uninterruptedly, all of the property once again will
fall into this designation; this point has not been reached as yet.
Nonetheless, even though the premises are not wild land, I still find
and rule that on all the evidence the Wests have not established
title by adverse possession. All of the activities which they
conducted on the premises were occasional and intermittent and were
either a spillover from those conducted on the West homestead or
were recreational and not done under a claim of right. Many of
these were not open and notorious but were obscured by the nature
of the land or the activity from view. Since the confirmation case
was filed in the Land Court in 1975 which stopped the running of
adverse possession, the activities on the locus necessarily would
have had to commence by 1955 to encompass the required twenty years.
Most of those as to which there was testimony at the trial either
did not start until later than 1955 or were so insignificant during
the earlier period as not to merit consideration.

There is another fatal flaw in the West case. Although the use
of the property by the Nortons over the years has been slight and
consisted principally of an occasional removal of the top soil and the picking of Christmas greens, there is one respect in which the
Nortons exercised dominion over Lot 26 where the activities of the
Wests were concentrated. In 1947 two enormous masts from a large
private yacht of which Captain Norton was the master were brought
to the locus and placed thereon. They were not removed until after
Captain Norton's death with the purchase of the masts by a local
builder in 1963. While there was testimony that Mrs. West's father
protested the presence of the masts on Lot 26, Captain Norton
persisted in leaving them in place, and they were only removed
after the Captain's death when Mrs. Norton liquidated his assets.
While there was some conflict as to the actual dates the masts were
on the property, there was unanimity as to their presence and conspicuous
nature. The dominion evidenced by their continued presence
from their installation in the 1940's to their removal in 1963 seems
more extensive than that in Mendonca v. Cities Service Oil Company, 354 Mass. 323 (1968). This exercise of dominion broke the requisite
element of continuity of possession of Lot 26.

For these reasons, the plaintiffs in the miscellaneous case
cannot prevail nor can they bar the confirmation of the petitioners'
title to the area hereinbefore delineated. However, the Wests have
established an easement by prescription to use the way across the
property in a general north to south direction from their property
on the southwesterly side of Proprietors Road to a point on Meeting
House Road across from the Reynolds homestead. This way is approximately
ten feet wide, has been used continuously, openly, notoriously
and under a claim of right for well over twenty years. N.P.N.
is to submit to the Land Court engineers such data as the Land Court
engineers may require for the location on the confirmation plan of
the way. A decree is to be entered confirming the title of the
petitioners to the premises shown on the Plan, subject to said way
and subject to such other matters as are not in issue here.

The Conover parcel is not included in the present proceeding.
The parties have agreed to the boundaries as shown on the filed plan.
N.P.N. refused to agree, however, not to contest the title to this
piece in some future proceeding. While the question is not now
before this Court, much evidence inevitably was received as to the
use of this parcel. There would seem to be no merit in any further
litigation concerning the title to the Conover parcel.

Decree accordingly.

FOOTNOTES

[Note 1] Evidence at the trial established that Martha Gazaille died many years ago and that she, therefore, was not a proper party plaintiff in the Miscellaneous Case nor was the answer in her name in the Confirmation Case appropriate.

[Note 2] All recording references herein, unless otherwise noted, are to said Registry of Deeds.

[Note 3] Note the variance in the stated numbers of the books for documents recorded on the same day in a small registry. Either a typographical error or a peculiarity of local recording practice would seem to be the answer.

[Note 4] This conclusion is buttressed by the fact that one Carmen Salvadore answered in the case but later withdrew before the trial.